Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 1 of 42

1 Counsel Listed on Signature Page]

2

3

4

5

6

7

8 9

10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 SACRAMENTO DIVISION 13

14 UNITED STATES OF AMERICA, Case No. 2:07-CR-0266 FCD

15 Plaintiff, DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT 16 v. CONDUCT 17 HARRISON ULRICH JACK; GENERAL Date: April 6, 2009 VANG PAO, aka Pao Vang, aka Vang Pao; Time: 1:30 pm 18 LO CHA THAO; LO THAO, aka President Lo Judge: Hon. Frank C. Damrell, Jr. Thoa, aka Xia Lo Thao; YOUA TRUE 19 VANG, aka Joseph Youa Vang, aka Colonel Youa True Vang; HUE VANG; CHONG 20 YANG THAO; SENG VUE; CHUE LO; NHIA KAO VANG; and DANG VANG, aka 21 David Vang, 22 Defendants.

23 24

25 26 27 28

437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 2 of 42

1 TABLE OF CONTENTS

2 Page

3 I. INTRODUCTION ...... 1 4 II. FACTS ...... 4 5 A. Harrison Jack contacts an acquaintance—not a defense contractor— and asks about purchasing guns for Hmong villagers to use in self- 6 defense...... 4 7 B. The ATF deploys an undercover agent who encourages and orchestrates an offensive action in Laos...... 5 8 C. The alleged conspirators demonstrate their inability to concoct even a 9 rudimentary plan, so the agent directs the “scheme” himself...... 11 10 D. Wiretaps and interviews disclose that the so-called “conspirators” are deeply divided, but the government suppresses this information...... 13 11 E. The agents submit false and misleading sworn affidavits...... 19 12 F. The prosecutors repeat the agents’ misstatements...... 24 13 III. ARGUMENT...... 27 14 A. Legal Standard: Outrageous government conduct violates the Due 15 Process Clause and requires dismissal of an indictment...... 27 16 B. All four factors weigh in favor of dismissing the indictment in this case...... 29 17 1. The defendants were not active participants in the “crime” 18 before the government got involved...... 29 19 2. The alleged criminal enterprise was not ongoing at the time the government got involved...... 29 20 3. The defendants would have been unable to commit the “crime” 21 without the government’s involvement...... 30 22 4. The misconduct was performed by a government agent, not a private informer...... 32 23 C. This case is similar to others that Courts have dismissed for 24 government misconduct...... 32 25 IV. CONCLUSION...... 36 26

27 28

i 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 3 of 42

1 TABLE OF AUTHORITIES

2 Page(s)

3 Federal Cases 4 Franks v. Delaware 5 438 U.S. 154 (1978)...... 4 Greene v. United States 6 454 F.2d 783 (9th Cir. 1971) ...... passim 7 United States v. Barrera-Moreno 951 F.2d 1089 (9th Cir. 1991) ...... 32 8 United States v. Bonanno 852 F.2d 434 (9th Cir. 1988) ...... 28 9 United States v. Emmert 10 829 F.2d 805 (9th Cir. 1987) ...... 28 United States v. Garza-Juarez 11 992 F.2d 896 (9th Cir. 1993) ...... 28 12 United States v. Gonzales 539 F.2d 1238 (9th Cir. 1976) ...... 28, 29 13 United States v. Greenbank 491 F.2d 184 (9th Cir. 1974) ...... 29 14 United States v. Lomas 15 706 F.2d 886 (9th Cir. 1983) ...... 30 United States v. Luttrell 16 889 F.2d 806 (9th Cir. 1989) ...... 27 17 United States v. Mayer 490 F.3d 1129 (9th Cir. 2007) ...... 27 18 United States v. McQuin 612 F.2d 1193 (9th Cir. 1980) ...... 30 19 United States v. Prairie 20 572 F.2d 1316 (9th Cir. 1978) ...... 29 United States v. Reynoso-Ulloa 21 548 F.2d 1329 (9th Cir. 1977) ...... 29 22 United States v. Russell 411 U.S. 423 (1973)...... 3, 27 23 United States v. Simpson 813 F.2d 1462 (9th Cir. 1987) ...... 28, 32 24 United States v. Twigg 25 588 F.2d 373 (3d Cir. 1978) ...... 28, 32, 33, 34, 36 United States v. Williams 26 791 F.2d 1383 (9th Cir. 1986) ...... 27 27 United States v. Wylie 625 F.2d 1371 (9th Cir. 1980) ...... 29 28

ii 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 4 of 42

1 TABLE OF AUTHORITIES (cont'd) 2 Page(s)

3 State Cases 4 United States v. Batres-Santolino 521 F.Supp. 744 (N.D.Ca. 1981) ...... passim 5 6 Federal Statutes 18 U.S.C. § 2332g...... 9 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

iii 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 5 of 42

1 I. INTRODUCTION 2 Like most recent so-called “terrorism” prosecutions, this one started with bold 3 proclamations about how government agents had saved us from a gathering threat. In its June 4 2007 press release about the arrests, the government trumpeted that the ATF—“and in particular 5 a very brave and dedicated agent of the ATF”—in cooperation with the FBI and the Joint 6 Terrorism Task Force, had thwarted “an audacious plan to overthrow the government of Laos[.]” 7 According to the government, this “Hmong insurgency planned to use AK-47 automatic rifles, 8 Stinger missiles, LAW rockets, anti-tank rockets and other arms and munitions to topple [the] 9 Lao government and reduce government buildings in Vientiane to rubble.” “Fortunately,” it 10 assured the public, “we were able to disrupt their activities before their plot evolved into a coup 11 against a country with which the United States is at peace.” 12 The first holes in that story appeared almost immediately when the government produced 13 its initial discovery materials, which demonstrated that the supposed “coup plot” lacked any 14 realistic financing, organization, or plan. Now that the government has provided more 15 discovery, however—including interview reports and dozens of hours of wiretap recordings—a 16 far more disturbing story has come to light. That evidence demonstrates that the agents in this 17 case made numerous false statements and material omissions in their sworn affidavits, which 18 have fundamentally mischaracterized the defendants’ alleged conduct—and that the prosecuting 19 attorneys repeated many of those misstatements, even while they held clear and irrefutable 20 evidence contradicting them. For example:

21  In at least 19 sworn affidavits, the agents attested that this case started when 22 defendant Colonel Harrison Jack contacted a “defense contractor” and tried to 23 purchase weapons. The prosecutors have repeated this allegation many times, and 24 have underscored how dangerous this supposed contact was, telling the Court that 25 the person Jack called was a “legitimate defense contractor,” and “not a fake one, 26 a real one who has government contracts in Iraq, who has business in Iraq and 27 other places.” But the evidence shows that this person was not a “defense 28 contractor” at all, nor apparently involved in arms sales in any way. Rather, he

1 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 6 of 42

1 sells specially processed water, which he claims (and Colonel Jack apparently 2 believed) can cure leukemia, prostate cancer, shingles, and numerous other 3 ailments. Moreover, Jack’s alleged conversation with this person did not concern 4 weapons to use in any “coup plot,” but rather for persecuted Hmong villagers to 5 use solely for self-defense.

6  While the agents attested in their affidavits that the defendants formulated a plan 7 for an “insurgent military operation” in Laos, in fact, this one alleged 8 conversation between defendant Jack and a purveyor of miraculous healing water 9 is the only part of the supposed “coup plot” that the government did not propel 10 and direct itself. When the undercover agent eventually contacted Jack—four 11 months later—Jack had forgotten about the entire affair. And when the agent 12 rekindled the idea, Jack emphasized that all that he wanted was to arrange safe 13 passage out of Laos for Hmong victims of genocide; that he was not interested in 14 overthrowing the Lao government; and that preferably no force at all would be 15 used while the persecuted Hmong villagers escaped from the country.

16  The agents omitted from their affidavits the leading role that the undercover ATF 17 agent himself played in encouraging, formulating, and directing the alleged “coup 18 plot”—from inflaming the defendants’ passions about the horrific genocide 19 occurring in Laos, to dashing any hope they had of a peaceful solution, to assuring 20 them that the CIA and the U.S. government would support them if they overthrew 21 the communist Lao regime, to suggesting the weapons they should use, to setting 22 the dates, and on, and on.

23  The agents fabricated supposedly incriminating exchanges between the 24 undercover ATF agent and defendant General Vang Pao, which appear nowhere 25 on the tape recording of the single occasion on which they met.

26  Perhaps even more astonishingly, while the agents and prosecutors have alleged 27 and charged an organized conspiracy, they have failed to apprise the Court of 28 extensive evidence demonstrating that Hmong elders, including General Vang

2 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 7 of 42

1 Pao, assailed the idea of an insurgency in Laos and forbade anyone to participate 2 in such a plan, giving explicit instructions that there must not be “any other 3 violence whatsoever.” The wiretap recordings that the government has produced 4 are replete with statements that General Vang Pao “is against this plan a lot,” that 5 he “doesn’t want the plan to go on,” and that he is trying to “stop” the plan and 6 “destroy[]” the plan. Yet—while possessing this evidence—the prosecutors told 7 the Court that General Vang Pao rallied the “conspirators” in support of the plan, 8 and denied that he opposed it.

9  As recently as October 2008, the prosecutors described in pleadings filed with the 10 Court an interview they conducted of a retired CIA agent—with three defense 11 counsel present—who, according to the government, told them about a meeting 12 where “[General] Vang Pao and his associates outlined for hours their operational 13 concept for military operations in Laos against the Lao government and Lao 14 soldiers.” But that account was completely false, as the retired CIA officer 15 explained in a sworn declaration. In fact, at that meeting General Vang Pao 16 rejected the idea of any military action in Laos (even if the U.S. government were 17 backing it), and said that he was interested only in a political solution to the 18 genocide unfolding there—and the retired CIA agent told the prosecutors this 19 when they interviewed him. 20 In United States v. Russell, 411 U.S. 423 (1973), the Supreme Court recognized that, 21 when the government engages in outrageous conduct, the defendants’ Due Process rights are 22 violated, and the indictment should be dismissed. Courts have applied that rule numerous times 23 to dismiss indictments in cases like this one, where government agents orchestrated and directed 24 the “crimes” that the government falsely and misleadingly attributed to the defendants in its 25 charging documents. That is the appropriate remedy here.1 26

1 27 Defendants bring this motion now—before they have received all of the government’s discovery, and while an important motion to compel discovery is pending—because the evidence 28 that has come to light already demonstrates government misconduct so egregious that it justifies dismissal of the indictment. If the case is not dismissed now, however, defendants will renew 3 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 8 of 42

1 II. FACTS2 2 A. Harrison Jack contacts an acquaintance—not a defense contractor—and asks about purchasing guns for Hmong villagers to use in self-defense. 3 In its sworn affidavits, the government has repeatedly contended that it learned of the so- 4 called coup plot when defendant Harrison Jack contacted a “defense contractor” in the fall of 5 2006 and asked about purchasing 500 AK-47 rifles.3 According to the government’s own 6 investigation report, however, Jack in fact contacted an acquaintance named Namon Hawthorne.4 7 Hawthorne is hardly a “defense contractor.” He is an inventor and small businessman whose 8 principal venture is a company that sells “kinetically charged” water, and posts “testimonials” on 9 its website claiming that its water can cure leukemia, prostate cancer, shingles, and many other 10 ailments.5 As set forth below, Jack believed Hawthorne’s claims, and his faith in Hawthorne’s 11 abilities may explain why he approached Hawthorne for help. The government has produced, 12 and defendants have uncovered, no evidence suggesting that Hawthorne is involved in any way 13 with arms sales. 14 Moreover, according to the government’s investigation report, when Jack approached 15 Hawthorne, he was not contemplating any sort of military offensive. Instead, he wanted 16 weapons that Hmong villagers in Laos could use purely for self-defense. Jack told Hawthorne 17 that he hoped to buy “rifles to be used to support Laotians who are being slaughtered in Laos,” 18 explaining that “there is a genocide taking place in Laos and he needed to help those persons 19 being ethnically cleansed by providing them with firearms to protect themselves.”6 20 21 this motion with any new evidence from the remaining discovery and will seek an evidentiary 22 hearing, as well as a hearing on a motion to suppress the fruits of the government’s illegal searches under Franks v. Delaware, 438 U.S. 154 (1978). 23 2 The factual recitation in this motion presents the version of facts most favorable to the government’s case that the government could attempt to prove in light of its evidence. Nothing 24 herein is an admission of any fact by any defendant. 3 25 See, e.g., Affidavit of Special Agent [REDACTED] in Support of a Criminal Complaint at ¶ 8, attached as Exh. 1 to the Declaration of Galia A. Phillips (“Phillips Dec.”). 26 4 Phillips Dec., Exh. 2, ATF Report of Investigation re Namon Hawthorne dated 9/29/06 (“Hawthorne Report”) at 1 [TarnEgl 034614]. 27 5 See Phillips Dec., Exh. 3, Excerpts from www.kinesiswater.com. 28 6 Phillips Dec., Exh. 2, Hawthorne Report at 1 (emphasis added) [TarnEgl 034614].

4 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 9 of 42

1 Presumably, Jack was responding to reports such as those by the United States State 2 Department, Amnesty International, Human Rights Watch, and other organizations, which have 3 documented the horrific genocide that the communist Lao government is perpetrating against the 4 defenseless Hmong hill people, as retaliation for the Hmong’s support of the United States 5 during the Vietnam War.7 As these organizations have reported, the Lao government’s 6 campaign of ethnic cleansing against the Hmong has intensified in recent years, and has included 7 massacres of unarmed Hmong women and children, widespread malnourishment, torture, 8 “reeducation” camps, and sexual enslavement of Hmong women and girls.8 9 At this point in the factual recitation, the Court should pause and reflect that this single 10 alleged act—talking to a purveyor of miraculous water about weapons that Hmong villagers 11 could use to defend themselves against these unspeakable crimes—is the only part of the 12 supposed “audacious plan to overthrow the government of Laos” that occurred before the “plan” 13 was taken over, propelled, and directed by the ATF agent himself.

14 B. The ATF deploys an undercover agent who encourages and orchestrates an offensive action in Laos. 15 Proving that he was no arms dealer, water-salesman Hawthorne reported Jack’s inquiry to 16 the FBI, which presumably recognized it for what it was, and did nothing.9 Hawthorne then 17 went to the ATF, and later— four months after Jack’s initial call to Hawthorne—an undercover 18 19 ATF agent contacted Jack. By that time, however, Jack had forgotten about the entire affair. 20 When the undercover agent told Jack that he had “talked to . . . Namon quite a bit about your

21 7 See, e.g., Phillips Dec., Exh. 4, Amnesty International Press Release, 3/23/07; Exh. 5, Amnesty 22 International Public Statement, 9/13/04; Exh. 6, Amnesty International Urgent Action Report, 1/05; Exh.7, Amnesty International Report, 3/07; Exh. 8, Amnesty International Report, 6/07; 23 Exh. 9, Amnesty International Public Statement, 5/4/06; Exh. 10, 2006 U.S. State Department Report on Human Rights Abuses in Laos; Exh. 11, 2005 U.S. State Department Report on 24 Human Rights Abuses in Laos. The communist Lao government is carrying out this genocidal campaign against the Hmong population in retribution for the Hmong’s support of the United 25 States during the Vietnam War, led by defendant General Vang Pao. See Phillips Dec., Exh. 12, Andrew Perrin, Welcome to the Jungle, Time, April 28, 2003, at 1-2; Exh. 9, Amnesty 26 International Public Statement, 5/4/06 at 2. 8 27 Id. 9 Phillips Dec., Exh. 13, Affidavit of Undercover Agent in Support of Continued Application to 28 Wiretap Harrison Jack’s Phone (“HJ Cont. Wiretap Affidavit”) at 19:7-9 [TarnEgl 034804].

5 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 10 of 42

1 problem,” Jack responded by asking the agent, “what problem are you talking about?” When the

2 agent explained that he meant the “problem in East Asia. [The] AK’s,” Jack said, “Oh. Oh.

3 10 Okay. Okay. Golly sakes, that’s a long time ago.” 4 The agent, however, was undeterred. He arranged a meeting with Jack at a local 5 restaurant, and over the next six months, he met primarily with Jack and defendant Lo Cha Thao 6 at various restaurants and bars, where alcohol flowed freely. 7 At Jack’s very first meeting with the agent, on January 25, 2007, he emphasized once 8 again that his sole desire was to help the Hmong villagers defend themselves against genocide— 9 not to take any offensive action, or even to use force at all if it could be avoided. Jack told the 10 agent that he was in contact with a group of concerned Hmong people in the United States who 11 were “seriously considering promoting free democratic elections inside Laos as soon as 12 possible.” When the agent asked if this group was “willing to use force,” Jack responded, 13 “Preferably not. They want to do it differently . . . .” He explained that “their primary objective 14 is to get their people out of Laos and across the border into Thailand. They don’t care about 15 taking over the government. They don’t want to do that.” When the agent pressed, reiterating 16 “To try to overthrow the government,” Jack repeated: “No. No. No. They’re trying to 17 survive.”11 18 The agent, however, had other ideas. Over the ensuing weeks and months, he goaded and 19 pressed the so-called “conspirators” to do more—to aim higher, to move more quickly, and to 20 use more, and more powerful, weapons. Jack, for his part, continued to insist that the “optimum 21 situation” was to use no force at all.12 But the agent was quick to dash any hope of a peaceful 22 end to the genocide. He assured Jack that the United Nations was “not going to do anything,” 23

10 24 Phillips Dec., Exh. 14, Jack’s Calls, 1/22/07 at 2:17-3:4. 11 Phillips Dec., Exh. 15, Transcript of January 25, 2007 Meeting (“1/25/07 meeting”) at 51:23- 25 54:24. 12 26 Phillips Dec., Exh. 16, Transcript of February 7, 2007 Meeting (“2/7/07 meeting”) at 18:8- 19:1. (“The optimum situation would be if I can generate some political, via the international 27 leverage, where they cut the genocide off, okay, and declare a mutual (inaudible), where these people could be escorted. That’s the optimal, rather than having to fight their way out. . . . We 28 got women and children. I mean this is like, uh, Chief Joseph, okay, moving the Nez Perce Tribe.”) 6 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 11 of 42

1 even as he fanned the embers of outrage, comparing Laos’s genocidal campaign against the 2 Hmong to “the German’s final solution.”13 3 On the other hand, the agent told Jack, if Laos’s brutal communist government were 4 overthrown and replaced with a democratic one, the United States government would certainly 5 support that: 6 Agent: Oh, the U.S. has no choice but to support a democratic government. They will support it. 7 . . . 8 Jack: You think so? 9 Agent: Oh, yeah. No doubt in my mind. . . . 10 . . . 11 Agent: I’m willing to bet, Harrison, that the CIA is aware of 12 what’s going on there. You know what I mean? … They know what the hell’s going on. They don’t want to get in 13 another Vietnam, but if Vang Pao goes in there and takes over the freaking country and then wants a—and—and gets 14 things squared away and then wants to have democratic elections, that’s gonna be like that, I have no doubt in my 15 mind. 16 Jack: Okay.

17 Agent: No doubt in my mind. 18 Jack: That’s good to hear. That’s good to hear. 19 . . . 20 Agent: We’ve got a different CIA today than you had then, Harrison. I think that, uh, I think they’ll step in there and 21 go, “Hey, you know, this is what we can do, and this is why we can do it, because we have the backing of our 22 Government and not just our agency, and we want to back your political endeavor of democracy.”14 23 Since these assurances came from someone who claimed to have deep and ongoing 24 connections with the U.S. government, the so-called “conspirators” had every reason to believe 25 26

13 27 Phillips Dec., Exh. 15, 1/25/07 meeting at 19:18-20:2; Phillips Dec., Exh. 17, Transcript of March 5, 2007 Meeting (“3/5/07 meeting”) at 24:25-25:16. 28 14 Phillips Dec., Exh. 17, 3/5/07 meeting at 48:12-18, 49:6-23, 50:8-15.

7 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 12 of 42

1 them.15 And the record is replete with evidence that they did believe that the U.S. government 2 would support an effort to overthrow the Lao government, if only tacitly. Jack repeatedly told 3 the agent that Two-Star Generals were working with him to support the Hmong, and that they, in 4 turn, were communicating with “senior Congressional officials.”16 Jack and Lo Cha Thao also 5 reported on Lo Cha Thao’s meetings with the CIA, in which the CIA agreed to provide tacit 6 assistance for an effort to aid the Hmong people in Laos. Jack told the agent, for example, that 7 Lo Cha Thao had met with two “deputy directors” of the CIA, and that they were “basically 8 supportive,” and “also mentioned that they had some funding available.”17 Jack also said that the 9 CIA officials warned that “[y]ou can’t count on the UN. . . . You need to take care and protect 10 yourself on the field, and we’ll support you on that.”18 Similarly, Lo Cha Thao told defendant 11 David Vang that “this is the Americans, they are doing it through their channels. It’s not like we 12 are stealing or something.”19 The agent heard many such comments, but he never expressed any 13 doubt or surprise that the government was backing their efforts.20

14 15 The agent told Jack and Lo Cha Thao, for example, that he was a former Naval special warfare 15 operative with experience in Iraq. Phillips Dec., Exh. 15, 1/25/07 meeting at 22:23-23:4, 24:24- 25:1. He also told them that he would fly the weapons he would deliver out of Beale Air Force 16 base, and suggested that Jack fly POWs from Laos into either Travis or Beale Air Force Base. Phillips Dec., Exh. 17, 3/5/07 meeting at 58:6-59:24, 63:2-3. Similarly, he assured them that it 17 would be no problem if he were stopped at security checkpoints in Thailand, leading Jack to believe that “[h]e is working with the Thai military,” “training them,” and “providing them 18 equipment directly.” Phillips Dec., Exh. 18, Transcript of May 3, 2007 Meeting (“5/3/07 meeting”) at 12:15-013:21; Phillips Dec., Exh. 19, Transcript of the wiretap recording of 19 Harrison Jack’s telephone (“Jack’s Calls”), 5/9/07, 5:25:43 p.m. at 3:14-4:4. 16 20 See, e.g., Phillips Dec., Exh. 16, 2/7/07 meeting at 14:8-18 (“I’ve got people at a two-star level, and I’ve got senior Congressional officials that will eventually be brought into the general 21 concept of this.”); Phillips Dec., Exh.17, 3/5/07 meeting at 31:4-13 (“I got another two-star I work with. He called up Feinstein’s office, and, uh, her staff is going to be meeting with him 22 this Friday. . . . [T]hey set up meetings with, uh, congressional reps in Minnesota and Wisconsin . . . .”). 23 17 Phillips Dec., Exh. 20, Jack’s Calls, 3/28/07, 10:40 a.m. at 1:7-25. 18 24 Phillips Dec., Exh. 21, Jack’s Calls, 4/3/07, 4:28:00 p.m. at 1:22-3:4. 19 Phillips Dec., Exh. 22, Hmong to English transcript of the wiretap recording of a Lo Cha Thao 25 telephone call (“LCT’s Calls”), 5/20/07, 16:48:00 p.m. at 28 [TarnEgl 037500]. 20 26 Id. To be sure, the agent also discussed with Jack—though not with other defendants—that their plans should be kept from the police. But that alone is not inconsistent with the belief that 27 the U.S. government tacitly supported them. See, e.g., Phillips Dec., Exh. 21, Jack’s Calls, 4/3/07, 4:28:00 p.m. at 2:12-19 (stating that the CIA had offered financial support, but that “they 28 would not be able to use dollars” because “they didn’t want any trace on the thing.”) Moreover, Lo Cha Thao was told by a lawyer that a weapons exchange was legal if it occurred outside the 8 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 13 of 42

1 Meanwhile, the agent pressed the “conspirators” to buy more, and more powerful, 2 weapons. At the first meeting with Harrison Jack, he offered to provide more than 500 AK-47s, 3 and also suggested M-16s.21 A week later, in a call on February 1, 2007, he suggested additional 4 artillery, including anti-armor weapons.22 At a February 7 meeting, he offered much more, 5 including grenades and claymore mines.23 Soon he was suggesting AT-4 antitank rockets and 6 Stinger missiles. 24 And he pushed Jack and Lo Cha Thao to buy bigger quantities of weapons— 7 warning them, for example, that his “partner was not happy with the size of the first order.”25 8 The government’s attempt to inject Stinger missiles into the alleged scheme is typical of 9 its methods. Jack told the agent that the Lao government had begun spraying Hmong villagers 10 with what appeared to be “yellow rain”—a chemical weapon—and that “people are starting to 11 drop.”26 The agent helpfully volunteered that he had recently acquired three Stinger missiles, 12 and suggested that the villagers could use the missiles to shoot down the helicopters that were 13 spraying them.27 Alleging that some of the defendants responded with interest, the government 14 charged nine defendants with conspiring to receive and possess missile systems capable of 15 destroying aircraft in violation of 18 U.S.C. § 2332g—a charge that carries a mandatory 16 minimum sentence of 25 years. 17 Indeed, the agent repeatedly stoked and exploited the so-called conspirators’ outrage 18

19 United States, and he reportedly conveyed this advice to others. See Phillips Dec., Exh. 23, Jack’s Calls, 5/9/07,12:44 p.m., at 25:14-28:24; Id. at 32:21-33:16; Phillips Dec., Exh. 24, FBI 20 302 re Salen Tong Va Lor Interview, dated 6/11/07 (“STVL Interview”) at 33, 64-65 [TarnEgl 035943 and 035974-75]. Presumably, the government monitored these calls, and it knew that Lo 21 Cha Thao had received this advice, but the agent never told him it was incorrect. 21 Phillips Dec., Exh. 15, 1/25/07 meeting at 3:25-4:8; Phillips Dec., Exh. 25, ATF Report of 22 1/25/07 meeting at ¶ 6 [TarnEgl 034616-17]. 22 23 Phillips Dec., Exh. 26, Jack’s Calls, 2/1/07 at 3:24-4:2. Id. at 6:7-10. 23 Phillips Dec., Exh. 16, 2/7/07 meeting at 17:1-23; See also, Phillips Dec., Exh. 27, ATF 24 Report of 2/7/07 meeting at ¶ 1 [TarnEgl 034707] ( list of weapons provided by agent). 24 25 Phillips Dec., Exh. 28, Jack’s Calls, 3/7/07 at 4:19-25; Phillips Dec., Exh. 18, 5/3/07 meeting at 10:6-11:4. 26 25 Phillips Dec., Exh. 1, Agent’s Affidavit at 32:20-22. 26 27 Phillips Dec., Exh. 28, Jack’s Calls, 3/7/07 at 1:13-22. 27 Phillips Dec., Exh. 28, Jack’s Calls, 3/7/07 at 4:13-5:16; Phillips Dec., Exh. 1, Agent’s 28 Affidavit at 16:23-27; Phillips Dec., Exh. 29, Jack’s Calls, 4/13/07, 5:35:16 p.m. at 8:19-25.

9 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 14 of 42

1 about the genocide to lure them towards his goal. In meeting after meeting, he listened while the 2 “conspirators” decried the brutal atrocities that the Lao government was perpetrating against 3 their family members. He listened to reports of a “genocide order,” which adopted an official 4 policy of genocide toward the Hmong, and the terror that this document had struck in the Hmong 5 community.28 Sipping his bourbon and coke, he listened as Lo Cha Thao and others described 6 how Lao soldiers had raped eight Hmong girls, ages 11 to 16, and how the Lao government was 7 now searching for the girls in a Hmong refugee camp in Thailand to prevent them from sharing 8 their story with aid organizations—a desperate game of cat-and-mouse that Lo Cha Thao would 9 raise again in a wire-tapped call with Jack a week later, pleading for help for the girls and their 10 families.29 And the agent listened as the “conspirators” racked their brains to come up with any 11 means to stop the genocide—from supporting a documentary film to raise the world’s awareness, 12 to smuggling jars of yellow rain to a laboratory in the U.S. to get evidence of the Lao 13 government’s abuses.30 14 But the agent, serving his own agenda, encouraged them to believe that what would 15 finally bring relief to the Hmong people suffering in Laos was force. In one exchange, for 16 example, he enticed Jack with the promise that Jack could finally deliver humanitarian aid to the 17 people who were starving: “You go in there and you see the Hmong that have been treated

18 badly—and are starving or—you can start propping them up and getting the support and 19 helping them.”31 20 21 22 28 Phillips Dec., Exh. 15, 1/25/07 meeting at 13-15. See also id. at 31:9-16; Phillips Dec., Exh. 23 30, Jack’s Calls, 4/9/07, 5:21:09 p.m. at 1:24-3:18; Phillips Dec., Exh. 31, Jack’s Calls, 4/17/07, 4:48:51 p.m. at 3:24-4:11. 24 29 Phillips Dec., Exh. 32, Transcript of May 23, 2007 Meeting (“5/23/07 meeting”) at 1:19-2:2, 76:2-84:17; Phillips Dec., Exh. 33, Translation of 5/23/07 meeting at 18:4-19:9; Phillips Dec., 25 Exh. 34, Jack’s Calls, 6/3/07, 10:25:49 p.m. at 1:21-7:16. 30 26 See, e.g., Phillips Dec., Exh. 35, Jack’s Calls, 3/30/07, 2:06:35 p.m. at 4:11-23; Phillips Dec., Exh. 36, Jack’s Calls, 4/16/07, 6:15:31 p.m. at 4:4-5:16.Phillips Dec., Exh. 37, Jack’s Calls, 27 4/4/07, 10:46:12 a.m. at 5:4-6:16 and 9-14; Phillips Dec., Exh. 38, Jack’s Calls, 4/9/07, 1:10:17 p.m. at 1:18-5:10. 28 31 Phillips Dec., Exh. 18, 5/3/07 meeting at 60:15-18.

10 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 15 of 42

1 C. The alleged conspirators demonstrate their inability to concoct even a rudimentary plan, so the agent directs the “scheme” himself. 2 The agent provided more than encouragement and assurances, however. He also 3 provided the direction and the most rudimentary operational competence needed to form the 4 alleged scheme. The government has pointed to Jack—a former military officer—as possessing 5 that competence.32 But if so, he certainly did not display it here. And, more to the point, the 6 government failed to apprise the Court of a vast amount of evidence that contradicts that 7 assertion. 8 To begin with, as already noted, Jack did not approach a “defense contractor” to discuss 9 weapons that Hmong villagers could use to defend themselves, but rather Namon Hawthorne. 10 He apparently did this because of his faith in Hawthorne’s miraculous abilities—a faith with 11 which the agent was thoroughly familiar. Jack expounded at length to the agent about 12 Hawthorne’s power, using his specially processed water, to cure diabetes and radioactivity 13 poisoning.33 The agent was kind enough to go along with these claims, but told Jack that there is 14 “no money in curing that though,” which Jack apparently believed.34 15 Similarly, the government has pointed to Jack’s request that an associate named “Lisa” 16 perform what it characterized as a “background check” on the agent “through sources at her 17 disposal.”35 But the government did not reveal what those “sources” are. According to the 18 government’s own investigation report, “Lisa” is an “herbalist/nutritionalist who also does 19 muscle mapping/testing,” and she acquires information by running “metaphysical tests” using 20 “pendulum and kinesiology systems.”36 The pendulum is “a crystal used to ask[] questions of 21

22 32 Phillips Dec., Exh. 39, Transcript of the July 12, 2007 Bail Hearing (“Bail Hearing”) at 44:3- 23. (“Harrison Jack probably knows better than the undercover agent exactly how this operates, 23 because he was a Lieutenant Colonel in the United States Army, a Ranger, Airborne Infantry Office, did tours in Southeast Asia. He’s not someone who just fell off the turnip truck.”). 24 33 Phillips Dec., Exh. 17, 3/5/07 meeting at 99:24-102:25. 25 34 Phillips Dec., Exh. 17, 3/5/07 meeting at 82:3-4. 35 26 Phillips Dec., Exh. 1, Agent’s Affidavit at 33:8-13; Phillips Dec., Exh. 39, Bail Hearing at 62:2-5; Phillips Dec., Exh. 65, Government’s Opposition to Defendants’ Motion for Bail (Doc. 27 76) at 3:7-12. 36 Phillips Dec., Exh. 41, ATF Report of Investigation re Lisa Navarro, 8/15/07 (“Navarro 28 Report”) at ¶¶ 2 and 3. [TarnEgl 034767].

11 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 16 of 42

1 and based upon it[s] reaction answers can be determined.”37 2 Jack’s faith in the supernatural is commensurate with his and Lo Cha Thao’s utter lack of 3 competence for any realistic planning. The evidence of this permeates the transcripts of their 4 meetings with the agent, which occurred at various restaurants and bars, where they would drink 5 beer and hard liquor, and engage in boastful and patently ludicrous talk about replacing the 6 repressive Lao government—the essence of the alleged crimes in this case. In one such meeting, 7 for example, Lo Cha Thao assured the agent that they would encounter no resistance when they 8 carried weapons through Lao border checkpoints (“Even though you have a whole trunk full of, 9 ah—um, ammo, weapons, they won’t even check. . . . No, I mean, they don’t care. They don’t 10 even care.”).38 He also insisted that there is no security at Lao government buildings or at the 11 airport,39 and that Vientiane, the capital of Laos, has a population of only twenty or thirty 12 thousand (National Geographic lists its population as 716,000).40 He maintained that the military 13 would simply give up in the face of any challenge (“They’re just going to take off their uniforms 14 . . . .”).41 Jack concurred that the Lao military would support an overthrow of the government.42 15 At another such session, when the agent asked Lo Cha Thao about GPS coordinates for 16 drop sites, Lo Cha Thao responded that he did not know what a GPS was, and was concerned 17 that it would cost more than $50.43 The agent told him he could get one at Fry’s Electronics, and 18 helpfully reminded him to get batteries too.44 19 While the “conspirators” drank and boasted, however, the agent moved things along. He 20 21

37 22 Id 38 Phillips Dec., Exh. 42, Transcript of May 11, 2007 Meeting (“5/11/07 meeting”) at 62:7-21. 23 39 Phillips Dec., Exh. 42, 5/11/07 meeting at 20:12-25; 60:19-25. 24 40 Phillips Dec., Exh. 42, 5/11/07 meeting at 59:17-60:15; Phillips Dec., Exh. 43, (National Geographic webpage). 25 41 Phillips Dec., Exh. 42, 5/11/07 meeting at 25:11-15. 26 42 Phillips Dec., Exh. 17, 3/5/07 meeting at 47:9-18; Phillips Dec., Exh. 28, Jack’s Calls, 3/7/07 at 3:7-4:1. 27 43 Phillips Dec., Exh. 32, 5/23/07 meeting at 30:3-31:24. 28 44 Id.

12 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 17 of 42

1 suggested all manner of weapons.45 He told them what types of medical supplies they needed.46 2 He demanded maps of the area, and when the “conspirators” proved incapable of procuring any 3 useful ones, he provided them himself.47 He pushed Jack and Lo Cha Thao to hold a “planning 4 meeting,” telling them they had better have one “sooner rather than later.”48 And he pressed 5 them to produce a written operational plan—resulting in the farcical “POPCORN” plan attached 6 as Exhibit 1 to the Complaint, which was drafted not by Jack, the supposed tactical brains of the 7 operation, but by an out-of-work drafter of business documents.49 8 Besides demonstrating their operational incompetence, the “conspirators” demonstrated 9 an utter inability to finance the alleged scheme. According to the government, the financing 10 efforts consisted of such things as placing a clear collection jar at a booth at a rally in 11 Washington, and promises to write thank-you notes to everyone who donated.50 Whatever was 12 done, however, the evidence produced in discovery reveals that, despite an alleged total budget 13 of $9.8 million,51 Lo Cha Thao raised—at most—approximately $24,000.52

14 D. Wiretaps and interviews disclose that the so-called “conspirators” are deeply divided, but the government suppresses this information. 15 The government’s pre-indictment investigation revealed more than just a lack of 16 direction, competence, or financing for the alleged coup plot—it revealed staunch opposition. 17 For instance, at a critical meeting on June 2, 2007, Hmong elders, including General Vang Pao, 18

19 45 See p. 9, infra. 46 Phillips Dec., Exh. 42, 5/11/07 meeting at 53:2-56:11. 20 47 Phillips Dec., Exh. 17, 3/5/07 meeting at 64:22-67:2. 21 48 Id.; Phillips Dec., Exh. 28, Jack’s Calls, 3/7/07 at 4:2-4. 22 49 Phillips Dec., Exh. 1, Agent’s Affidavit at 10:2-10; Phillips Dec., Exh. 44, Indictment, at ¶ GG; Phillips Dec., Exh. 45, David Vang's Memorandum In Support Of Bail, filed 6/19/07, at 5- 23 6. 50 Phillips Dec., Exh. 46, ATF Report of Investigation re Rolling Thunder [TarnEgl 034710-11]; 24 Phillips Dec., Exh. 47, Jack’s Calls, 4/5/07, 8:29:59 p.m. at 6:4-11. 25 51 Phillips Dec., Exh. 1 Agent’s Affidavit at 24:17-27. 52 Phillips Dec., Exh. 24, STVL Interview at 24 [TarnEgl 035934] (“And, right now we[] got 26 $24,000.00 dollar[s].”); Phillips Dec., Exh. 48, Documents Seized from Search Warrant of Nhia Kao Vang’s Home (“Nhia Kao Vang Docs.”) [TarnEgl 030221, 22, 27]. See also id. at 24 (Note 27 dated the day before the arrests, June 3, 2007, stating that“24k on hand as [of] now.”). See also Phillips Dec., Exh. 49,LCT’s Calls, 5/31/07, 13:27:13 p.m. at 6 [TarnEgl 039722] (“[W]e are 28 going to do it by ourselves, but what about the money? Where are we going to get it?).

13 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 18 of 42

1 the leader of the Hmong community, assailed the plan, berated Lo Cha Thao and defendant Lo 2 Thao for discussing it, and insisted that no one participate. Astonishingly, the government has 3 denied that these events occurred, but the evidence that they did—evidence that the government 4 has held for well over a year—is overwhelming and irrefutable. 5 Even before the critical June 2, 2007 meeting, numerous intercepted telephone calls 6 demonstrated that General Vang Pao and other Hmong elders opposed any coup plan. In a May 7 12, 2007 call, for example, a messenger informed Lo Cha Thao that the General forbade any 8 violence in Laos whatsoever: 9 [B]ut the old man [Vang Pao] emphasized . . . this morning that he think strongly about these work . . . . [T]he owners of this country 10 [US government] had already hold hands [with Laos], so that’s that. We don’t have to make trouble. . . . What he emphasize I 11 think is, that part and this work contradict . . . . [H]e emphasize very strong that . . . that guy still considers that he is active for . . . 12 the owner of this country [US government] and with the policy he already have an agreement so that is how our duty is going to go. 13 There will not be any other violence whatsoever. So that is what has been approved. 53 14 This was hardly an isolated occurrence. References to General Vang Pao’s opposition to 15 any violence in Laos permeate the wiretapped phone calls. In a May 18, 2007 call, for example, 16 Lo Cha Thao said that this is “our mission, we are going to go ahead with it. VP cannot stop all 17 of us.”54 In another call a few days later, he explained that General Vang Pao wanted a political 18 solution to the genocide,55 and that the General had insisted that defendant Lo Thao resign as 19 President of the 18 Clan, a Hmong organization, if he went along with any plan to use violence.56 20 Lo Cha Thao even worried that, if any plan was put into effect, General Vang Pao would warn 21 22

23 53 Phillips Dec., Exh. 51, LCT’s Calls, 5/12/07, 20:05:43 at 4-5 [TarnEgl 036238-9] (emphasis added). 24 54 Phillips Dec., Exh. 52, LCT’s Calls, 5/18/07, 8:07:50 a.m. at 8 [TarnEgl 037216]. 25 55 Phillips Dec., Exh. 22, LCT’s Calls, 5/20/07, 4:48 p.m. at 21 [TarnEgl 037493]. See also id. at 8-9 [TarnEgl 037480-81]. Lo Cha Thao also discussed the General’s decision to work for a 26 political solution—and his opposition to Lo Cha Thao’s plan—on a call on May 18, 2007. Phillips Dec., Exh. 53, LCT’s Calls, 5/18/07, 10:00 a.m. at 6-8 [TarnEgl 037256-58]; see also 27 Phillips Dec., Exh. 54, LCT’s Calls, 6/3/07, 20:39:17 p.m. at 17-18 [TarnEgl 037804-05].

28 56 Phillips Dec., Exh. 22, LCT’s Calls, 5/20/07, 4:48 p.m. at 12-13 [TarnEgl 037484-85].

14 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 19 of 42

1 the Thai and Lao governments.57 2 And after the June 2, 2007 meeting, Lo Cha Thao complained bitterly and repeatedly that 3 the General had treated him too harshly. He said that “[the General] turned to scold at me that I

4 shouldn’t be doing these things,”58 and that the General “is against this plan a lot. He doesn’t 5 want the plan to go on.”59 Friends sympathized that no one had come to his defense (“[T]hey 6 just let you bear the fire. The old man discredited you and scolded you, and they just stayed

7 put.”).60 To some, he boasted that he had stood up to the General (“[T]he old man demanded 8 that I stop. I said ‘I don’t hold any position in the 18 clan organization . . . . I work for 9 myself.’”).61 He lamented, “General, these kids found a way and how come you did not help

10 plan it? How come you are destroying it like this?”62 And he and Lo Thao resolved to break 11 away from the General (“[We] won’t get him involved anymore. I am telling you, as a young 12 guy, we will not get him involved anymore. He can say whatever. . . . We will not get him 13 involved.”).63 But they fretted about whether they could win supporters (“We will have to think 14 about and see if people follow us more or the old man more. So if the majority sides with us, 15 then continue to do it because right now, there are only two ways.”).64 16 The government has held the tape recordings containing these clear statements—and 17 many more like them—for more than twenty months. And if they were not enough to 18 57 Phillips Dec., Exh. 55, LCT’s Calls, 6/2/07 at 17:07:17 p.m. at 12-13 [TarnEgl 39826-27]; 19 Phillips Dec., Exh. 22, LCT’s Calls, 5/20/07, 4:48 p.m. at 28 [TarnEgl 037500]; Phillips Dec., Exh. 56, LCT’s Calls, 6/2/07, 18:32:52 p.m. at 37 [TarnEgl 39914] (“[W]hat if the old man 20 report it to the enemy? . . . He will not kill, but he reports to the enemy and the enemy knows one’s plans so ones will be dead by oneself.”). 21 58 Phillips Dec., Exh.55, LCT’s Calls, 6/2/07, 17:07:17 p.m. at 3 [TarnEgl 039817]. 22 59 Phillips Dec., Exh. 54, LCT’s Calls, 6/3/07, 20:39:17 p.m. at 11 [TarnEgl 037798]. 60 23 Phillips Dec., Exh. 57, LCT’s Calls, 6/2/07, 20:37:49 p.m. at 3 [TarnEgl 036590]. 61 Phillips Dec., Exh. 55, LCT’s Calls, 6/2/07, 17:07:17 p.m. at 7 [TarnEgl 39821]. Lo Cha Thao 24 also compared the General to Saddam Hussein after the June 2 meeting (“When [the General] has power, then he does it like Saddam Hussein. . . . If anyone doesn’t obey him then they die. 25 As for the old man, he doesn’t kill, but he block you, he scold you. He will say things about you and do things to you to destroy you.”). Phillips Dec., Exh. 58, LCT’s Calls, 6/2/07, 21:13:47 26 p.m. at 21-22 [TarnEgl 036619-20].). 62 Phillips Dec., Exh.54, LCT’s Calls, 6/3/07, 20:39:17 p.m. at 25 [TarnEgl 37812]. 27 63 Phillips Dec., Exh. 59, LCT’s Calls, 6/3/07, 07:32:45 a.m. at 6-7 [TarnEgl 036630-31]. 28 64 Phillips Dec., Exh. 58, LCT’s Calls, 6/2/07, 21:13:47 p.m. at 8 [TarnEgl 036606].

15 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 20 of 42

1 demonstrate that the government’s charges in this case are indefensible, interviews that the 2 agents conducted on June 4, 2007, the day of the arrests, revealed the same information. For 3 example, Salen Tong Va Lor told an ATF agent that Lo Cha Thao never said he was acting on 4 behalf of the General,65 that Lo Cha Thao did not have to report to the General,66 and that the 5 General opposed the plan.67 He explained that when Lo Cha Thao first told him of the plan, Lo 6 Cha Thao said that the General did not know about it, and that he did not want him to know 7 because the General might try to stop it.68 Through repeated questioning by the agent, Lor also 8 described how Lo Thao had told him after the June 2nd meeting that the plan was “separate” 9 from General Vang Pao, and that the General opposed it: 10 Agent: You have to clarify that, will you explain that to me cause I didn’t understand. How come General Vang Pao was not in 11 agreement with uh the plan, Lo Thao’s plan? STVL: Yeah, like I said before, because General Vang Pao is the top 12 Hmong leader right? Yeah so that’s why Lo Thao gonna do 13 something else, like he had his own plan. Agent: Okay. Separate from General Vang Pao. 14 STVL: Yeah separate from General Vang Pao, that is why he does 15 not agree. Agent: And this was expressed to you by Lo Thao? Lo Thao said that 16 to you? 17 STVL: Yes Agent: President Thao? 18 STVL: Yeah, President Thao 19 Agent: Okay, when did he tell you this? Was it a phone call? 20 STVL: Phone call Agent: Before June 2nd on June 2nd? 21 STVL: Uh before June 3rd 22 Agent: Before June 3rd? So before his meeting with the General he had a phone call. 23 STVL: Oh after, after he, he meet in meeting with General Vang Pao. 24 65 Phillips Dec., Exh. 24, STVL Interview at 20 [TarnEgl 035930]. 25 66 Phillips Dec., Exh. 24, STVL Interview at 40 [TarnEgl 035950]. 67 26 Phillips Dec., Exh. 24, STVL Interview at 20 [TarnEgl 035930]. 68 Phillips Dec., Exh. 24, STVL Interview at 36 [TarnEgl 035946] (“I talked to him and then well 27 if we go under General Vang Pao that would be good. He [Lo Cha Thao] said well because those old man is uh, is uh old generation . . . . [W]e don’t want to tell him right away that we are 28 gonna do this or that. If we tell him maybe he gonna stop . . . .”).

16 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 21 of 42

1 Agent: After he met. 69 2 STVL: That’s why he can tell me that. These statements are consistent with the statement of General Vang Pao himself after his arrest 3 that he knew about the plan but did not support it.70 Likewise, in Jack’s arrest interview, Jack 4 said “I can’t speak to General Vang Pao very well ... and I’ve heard it’s even going, you know, 5 another direction, I mean he’s not that directly involved in this effort.”71 6 Moreover, as the government knew, General Vang Pao’s ultimatum against violence was 7 consistent with a notorious public proclamation that he gave in November 2003 declaring that 8 the Hmong must try to make peace with the Lao government, and “[t]he era of killing must 9 stop.”72 That directive opened a deep rift in the Hmong community. Six months after General 10 Vang Pao gave it, his son’s house was firebombed while his wife and three young daughters 11 slept inside, and the house where another associate was caring for his elderly mother was sprayed 12 with gunfire.73 Yet with full knowledge of the attacks that General Vang Pao and his supporters 13 have endured for calling for dialog with Laos, the government has charged them with conspiring 14 to do just the opposite, and misrepresented the evidence proving that they did no such thing. 15 For example, at the bail hearing—where the government argued that every one of the 16

17 69 Phillips Dec., Exh. 24, STVL Interview at 62 [TarnEgl 035972]. 70 18 Phillips Dec., Exh. 60, ATF Report of Investigation regarding the interview of General Vang Pao on June 4, 2007 (“GVP Arrest Interview”) at ¶¶ 8, 11 [TarnEgl 036084-85] (“Vang stated 19 that after the meeting he warned Thao not to purchase the weapons from the American because it was not ‘official.’ Vang further stated to Thao that it was against American law to purchase the 20 weapons and smuggle them out of the United States. . . . Agent Diaz asked Vang how the weapons were going to be smuggled from Thailand into the Hmong camps, Vang stated that he 21 did not know anything about that.”). 71 Phillips Dec., Exh. 61, Video of Harrison Jack Arrest Interview, dated 6/4/07 at 17:36-17:47. 22 While Jack and Lo Cha Thao boasted to the agent about their close relationship with the General, that talk was obviously bluster—as the government knew from the phone calls it was secretly 23 monitoring. There are no wiretapped phone calls between General Vang Pao and either Jack or Lo Cha. When the ATF interviewed Jack’s wife, Carol Jack, she said that the only Hmong that 24 Jack regularly interacted with is Lo Cha Thao. Phillips Dec., Exh. 62, ATF Report of Investigation re Carol Jack dated 6/6/07 (“Carol Jack Report”) [TarnEgl 034731]. Likewise, 25 when Lo Cha Thao was interviewed after his arrest, he said that he does not have regular contact with the General and does not speak with him one on one. Phillips Dec., Exh. 63, FBI 302 re Lo 26 Cha Thao Arrest Interview, dated 6/4/07 (“FBI 302 re LCT Arrest”), at 5 [TarnEgl 036028]. 72 27 Phillips Dec., Exh. 64, New Republic Magazine article, titled “Hmong Friends”, written by Joshua Kurlantzick, dated February 5, 2007 (“New Republic article”) at 6. 28 73 Id. at 1-2.

17 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 22 of 42

1 defendants, including old and sick men, should remain in custody because they posed a danger to 2 others or the community that no conditions of release could abate—the prosecutors falsely 3 informed the Court that the defendants were united in support of the “coup plan,” and that 4 General Vang Pao had endorsed the plan at the June 2, 2007 meeting, not attacked it. Although 5 Assistant U.S. Attorney Endrizzi, who oversaw the investigation, was presumably familiar with 6 the government’s evidence, in their brief opposing bail the prosecutors stated, “If Vang Pao . . .

7 had said, ‘No. Stop,’ then the co-conspirators would have stopped. He didn’t say ‘No.’ He 8 said ‘yes’ . . . .”74 The prosecutors then reiterated this representation at the hearing: 9 In the moving papers from last night, it was suggested, as the government well knows, General Vang Pao engaged in a multi-hour harangue—I’m 10 paraphrasing—to tell the folks they shouldn’t be doing what they planned on doing. First of all, the government doesn’t know that at all.75 11 . . . . 12 Now, contrary to the defense position that what General Vang Pao was trying to 13 do—and I don’t want to put words in the defense mouth—as I understand the defense position, that General Vang Pao was trying to talk the folks in that 14 meeting out of engaging in this activity. We believe exactly the opposite.76 15 . . . .

16 That doesn’t seem even remotely like General Vang Pao haranguing all the others that they were doing something illegal and had to stand down. That 17 sounds much more to me like General Vang Pao exercising commands and saying: This is your mission. You’ve been entrusted with this mission. If you 18 don’t accomplish this mission, there’s going to be a problem.77 19 . . . . 20 A more reasonable interpretation, however, is that the haranguing was not about what to do, but how to do it. That’s the reasonable interpretation. So the 21 suggestion that General Vang Pao—certainly that the government knew, which is what was in the moving papers, “as the government well knew.” Well, we did not 22 well know. We don’t know now and we don’t think that’s what happened. We don’t think that’s a reasonable interpretation of what happened at all.78 23

24 74 Phillips Dec., Exh. 65, Government’s Opposition to Defendants’ Motion for Bail (Doc. 76) at 25 13:22-25. 75 26 Phillips Dec., Exh. 39, Bail Hearing at 52:6-11. 76 Phillips Dec., Exh. 39, Bail Hearing at 53:4-9. 27 77 Phillips Dec., Exh. 39, Bail Hearing at 58:5-11. 28 78 Phillips Dec., Exh. 39, Bail Hearing at 58:23-59:6.

18 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 23 of 42

1 E. The agents submit false and misleading sworn affidavits. 2 While the foregoing describes what emerges from the government’s evidence, the 3 undercover ATF agent told a startlingly different story in his sworn affidavits. Those 4 affidavits—and 19 more signed by another agent, Erik Crowder, who echoes the undercover 5 agent’s story—are riddled with false statements and misleading omissions, creating a version of 6 the “plot” that is more fiction than reality. 7 First, the undercover agent stated that Harrison Jack came to the ATF’s attention because 8 “he reached out to a defense contractor.”79 Agent Crowder repeated this allegation in each of his 9 affidavits.80 This was clearly intended to suggest that Jack had legitimate connections with arms 10 merchants, and therefore posed a serious threat of obtaining weapons and delivering them to 11 Laos. But as explained above, the statement is pure fantasy. As the undercover agent was well 12 aware—having engaged in lengthy conversations with Jack about the subject—Namon 13 Hawthorne was not a “defense contractor,” but a purveyor of “kinetically charged” water, which 14 Jack believed could cure radiation poisoning, diabetes, and a host of other conditions. The 15 agents also omitted from their affidavits that Jack wanted guns not for any offensive purpose, but 16 for besieged Hmong villagers “to protect themselves.”81 And they omitted any mention of Jack’s 17 statements that the people Jack was connected to preferred not to use force, and did not care 18 about taking over the government, but rather, were simply “trying to survive.”82

19 79 Phillips Dec., Exh. 1, Agent’s Affidavit at 4:4-6. 20 80 Phillips Dec., Exh. 1, Agent’s Affidavit at 4:4-6; Phillips Dec., Exh 13, HJ Cont. Wiretap 21 Affidavit at 19:3-14 [TarnEgl 034804]; Phillips Dec., Exh. 66, Affidavit of Undercover Agent in Support of Application to Wiretap Harrison Jack’s Phone (“HJ Wiretap Affidavit”) at ¶ 49 22 [TarnEgl 035396]; Phillips Dec., Exh. 67, Affidavit of Undercover Agent in Support of Application to Wiretap Lo Cha Thao’s Phone (“LCT Wiretap Affidavit”) at 17:17-27 [TarnEgl 23 034954]; See also Phillips Dec., Exh. 68, Excerpts from the Applications and Affidavits of ATF Special Agent Erik W. Crowder in Support of fifteen Search Warrants (“Pages from 15 other 24 Affidavits”) at ¶ 13 [TarnEgl 000305], id. at ¶ 14 [TarnEgl 002021], id. at ¶ 13 [TarnEgl 000008], id. at ¶ 13 [TarnEgl 000912], id. at ¶ 13 [TarnEgl 000107], id. at ¶ 13 [TarnEgl 25 000202], id. at ¶ 13 [TarnEgl 001279], id. at ¶ 13 [TarnEgl 001664], id. at ¶ 13 [TarnEgl 001786], id. at ¶ 13 [TarnEgl 000789], id. at ¶ 13 [TarnEgl 000406], id. at ¶ 13 [TarnEgl 26 001002], id. at ¶ 13 [TarnEgl 001156], id. at ¶ 13 [TarnEgl 000525], id. at ¶ 13 [TarnEgl 001400]. 27 81 Phillips Dec., Exh. 2, Hawthorne Report at 1 (emphasis added) [TarnEgl 034614]; Phillips Dec., Exh. 15, 1/25/07 meeting at 51:23-55:13. 28 82 Phillips Dec., Exh. 15, 1/25/07 meeting at 51:23-54:24. See also Phillips Dec., Exh. 16, 2/7/07 19 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 24 of 42

1 The undercover agent’s affidavit goes on to describe a meeting on February 7, 2007. 2 Agent Crowder repeated this description in each of his affidavits.83 This meeting is critical to the 3 government’s case—it is the only time the agent met General Vang Pao. But the agents’ 4 descriptions of it include pure fabrications that find no support in the tape recordings of the 5 meeting, and gross mischaracterizations of the dialog that the tapes do reflect. 6 The February 7th meeting occurred at a crowded Thai restaurant, where a large retinue of 7 Hmong people (including the General’s wife and many others) were eating lunch at two tables. 8 In describing the meeting, the agents repeatedly and misleadingly attribute supposedly 9 incriminating statements to “Jack and General Vang Pao” collectively, as though both were 10 actively discussing the supposed coup plot at the meeting. In fact, General Vang Pao—whose 11 English is poor and who requires a translator—said virtually nothing to the agent at the lunch 12 meeting. The only exchange between General Vang Pao and the agent that appears on the tape 13 of the lunch meeting is the following: 14 Vang Pao: How do you do? General Vang Pao.

15 Steve: Nice to meet you.

16 Vang Pao: Yeah.84 17 Moreover, much of the agents’ description of the dialog attributed to “Jack and General 18 Vang Pao” is simply fabricated, corresponding to nothing on the tape recordings. For example, 19 the undercover agent said in his affidavit, “During the meeting at the restaurant on February 7, 20 2007, I told Jack and General Vang Pao that I needed to have them show me on maps exactly 21

22 meeting at 18:8-19:1. 83 23 Phillips Dec., Exh. 1, Agent’s Affidavit at 8:13-12:5; Phillips Dec., Exh. 13, HJ Cont. Wiretap Affidavit at 23:20-27:5 [TarnEgl 034808-812]; Phillips Dec., Exh. 66, HJ Wiretap Affidavit at ¶¶ 24 62-69 [TarnEgl 035400-403]; Phillips Dec., Exh. 67, LCT Wiretap Affidavit at 21:25-25:11 [TarnEgl 034958-962]; See also Phillips Dec., Exh. 68, (Pages from 15 other Affidavits) at 25 ¶¶ 25-34 [TarnEgl 000309-313], id. at ¶¶ 26-35 [TarnEgl 002025-29], id. at ¶¶ 25-34 [TarnEgl 000012-16], id. at ¶¶ 25-34 [TarnEgl 000914-18], id. at ¶¶ 25-34 [TarnEgl 000111-15], id. at 26 ¶¶ 25-34 [TarnEgl 000206-10], id. at ¶¶ 25-34 [TarnEgl 001283-1287], id. at ¶¶ 25-34 [TarnEgl 001668-72], id. at ¶¶ 25-34 [TarnEgl 001790-94], id. at ¶¶ 25-34 [TarnEgl 000793-97], id. at 27 ¶¶ 25-34 [TarnEgl 000410-14], id. at ¶¶ 25-34 [TarnEgl 001038-1042], id. at ¶¶ 25-34 [TarnEgl 001160-1164], id. at ¶¶ 25-34 [TarnEgl 000535-539], id. at ¶¶ 25-34 [TarnEgl 001404-1408]. 28 84 Phillips Dec., Exh. 16, 2/7/07 meeting at 8:12-14.

20 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 25 of 42

1 where they needed me to insert both the troops and munitions, . . . [and] [t]hey stated that they 2 understood and could provide me with maps showing the points of insertion, as well as the 3 placement of insurgent troops and Lao government troops.”85 But the tapes reveal no discussion 4 at all like this at the lunch meeting. Nor is there any support for the undercover agent’s 5 statement in his affidavit that “I told Jack and General Vang Pao that I needed to get an 6 operational briefing from someone doing the operations planning for their insurgent operation, as 7 well as copies of the operations plan.”86 The agent simply made this up. 8 The undercover agent also attests that Jack and General Vang Pao described to him what 9 appeared to be a serious insurgency plan:

10 Jack and General Vang Pao advised me that the plan was to provide arms to insurgents who were in place in Laos, and to initiate hostile military action in 11 the very near future against military forces of the government of Laos. I was advised that the insurgents would attack Lao government soldiers and positions 12 and attempt to gain control of certain areas of the border between Laos and Thailand.87 13 But the taped record contains no statements like this either. Jack said at the meeting that he was 14 “trying to get these people [i.e., the Hmong victims of genocide] out from an area where they’re 15 encircled in,” and that he wanted to “secure tight border crossings and avenues” for them to 16 escape. 88 But he made clear that the “optimum situation” was not to use force at all.89 And 17 there was no mention of “insurgents” or of initiating a “hostile military action” at all—only of 18 escape. 19 At the bail hearing on July 12, 2007, defendants asked the government to explain these 20 contradictions between the agent’s account of the February 7 meeting in his affidavit and the 21 taped records of the meeting. The government responded that it was reviewing the recordings 22 23

24 85 Phillips Dec., Exh. 1, Agent’s Affidavit at 9:22-10:1. 86 25 Phillips Dec., Exh. 1, Agent’s Affidavit at 10:2-5. 87 Phillips Dec., Exh. 1, Agent’s Affidavit at 9:4-10. 26 88 Phillips Dec., Exh. 16, 2/7/07 meeting at 16:12-21, 19:8-12. 27 89 Phillips Dec., Exh. 16, 2/7/07 meeting at 18:8-19:1. Jack also discussed the genocide documents with the agent and told the agent that he was “coordinating all the media.” Phillips 28 Dec., Exh. 16, 2/7/07 meeting at 12:19-13:9.

21 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 26 of 42

1 and would provide an explanation.90 It has never done so. 2 In addition to fabricating seemingly damning evidence, the agents omitted numerous 3 exculpatory facts. They said nothing about the so-called conspirators’ apparent belief that 4 elements of the U.S. government, including the CIA, Two-Star Generals, and senior 5 Congressional leaders, knew of and supported their efforts—or of the undercover agent’s own 6 actions to encourage that belief. They also did not disclose the undercover agent’s efforts to 7 goad the “conspirators” to do more and use more weaponry, or their obvious ineptitude when it 8 came to doing any realistic planning.91 9 Nor did the agents explain how General Vang Pao and other Hmong came to be in this 10 country, while thousands of their brethren remained in Laos to become defenseless targets of 11 extermination by the Lao government. The undercover agent said that he researched General 12 Vang Pao, and therefore he must have known that, during the Vietnam War, Vang Pao led a 13 CIA-backed “secret army” of Hmong forces which fought on behalf of the United States in 14 Laos.92 Under General Vang’s leadership, this force fought more bravely and effectively than 15 anyone had imagined it could, holding the North Vietnamese and communist Pathet Lao forces 16 to a standstill.93 But it did so at an enormous cost, suffering massive casualties to advance 17 18

90 19 Phillips Dec., Exh. 39, Bail Hearing at 65:4-9. 91 The most lurid allegation in the undercover agent’s affidavit is his assertion that, on one 20 occasion, Lo Cha Thao said that he wanted the destruction in Laos to be “like September 11th.” Phillips Dec., Exh. 1, Agent’s Affidavit at 47:25-48:23. But the agent did not provide the 21 context for this statement. He did not disclose that the conversation took place in a bar where all three men were drinking alcohol. Phillips Dec., Exh. 42, 5/11/07 meeting at 1:4-6, 4:2-17. Nor 22 did he describe the other absurd boasting that Lo Cha Thao was engaging in during the conversation, such as that the Lao military was going to lay down its arms and give up, id. at 23 25:11-15; that Vietnam and Russia would be incapable of intervening, id. at 27:25-28:25, 46:4- 47:4; that the Lao government would flee, id. at 10:11-12:7; and that Lo Cha Thao was going to 24 set up Laos to be a neutral county like Switzerland, id. at 39:1-4. Nor did the agent disclose the facts that reveal Lo Cha Thao’s state of mind during this conversation, including his repeated 25 bemoaning of the Lao government’s genocide, id. at 41:1-9 and 69:17-073:11; his comment that “we are just defending our people,” id. at 97:7-8; and—perhaps most tellingly—the news that his 26 own cousin had just been killed. Phillips Dec., Exh. 69, Jack’s Calls, 5/10/07, 2:13:27 p.m. at 1:18-25. 27 92 Phillips Dec., Exh. 17, 3/5/07 meeting at 33:11-16. 28 93 See generally Phillips Dec., Exh. 64, New Republic article.

22 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 27 of 42

1 American interests.94 The agent must also have known that, after the United States ceded Laos 2 to the communists in the Paris Peace Accord, General Vang Pao and a few thousand others were 3 allowed to come to this country, while many more Hmong remained in Laos and tried to resume 4 their simple lifestyle. The communist government was in such disarray that only recently has it 5 begun in earnest its campaign to punish those remaining Hmong for their support for America.95 6 The agent omitted this history from his affidavit. 7 Moreover, the agents went out of their way to create the impression that all of the 8 defendants supported the alleged plan, despite the extensive wiretap evidence demonstrating 9 deep and entrenched opposition. Indeed, in the affidavits, the agents repeatedly and misleadingly 10 referred to the alleged conspiracy itself as “Neo Hom,” a Hmong organization founded by 11 General Vang Pao, even while admitting that “at no time has the term ‘Neo Hom’ been used by 12 any of the suspects in my presence to identify their affiliation.”96 Their use of this term was 13 plainly designed to equate Neo Hom and its members with the alleged conspiracy, whereas in 14 fact—as the agents surely knew—Lo Cha Thao and others deliberately distanced themselves 15 from Neo Hom (“Neo Hom’s people are just . . . ordinary. None of them can do anything. They 16 are all just fakes.”).97 The agents did not describe, of course, the May 2007 directive by General 17 Vang Pao to Lo Cha Thao that there must not be “any other violence whatsoever,” nor the 18 numerous other statements in wiretapped calls and interviews disclosing that same thing, nor did 19 they disclose that General Vang Pao had berated Lo Cha Thao and Lo Thao at the June 2 20 meeting for discussing the plan. To the contrary, the agents’ affidavits misleadingly describe the 21 press reports about the aftermath of General Vang Pao’s November 2003 speech calling for 22 94 Id. 23 95 Id. 24 96 Phillips Dec., Exh. 1, Agent’s Affidavit at 8:16-18. The agent states, for example, that he “met with Jack, General Vang Pao, and approximately twelve suspected Neo Hom leaders concerning 25 the sale of weapons to Neo Hom.” Phillips Dec., Exh. 1, Agent’s Affidavit at 8:14-16. 97 Phillips Dec., Exh. 70, LCT’s Calls, 5/20/07, 17:43:02 p.m. at 8 [TarnEgl 037511]. See also, 26 .e.g, Phillips Dec., Exh. 71, LCT’s Calls, 5/12/07, 9:32:55 a.m. at 5 [TarnEgl 036147] (“They are a politic group so they do their part and you do your part. . . . It’s your group. It doesn’t matter 27 if it is a group of young people or if there are old people joining with you. You have to have your own group, your own political group. . . . This way they won’t bring their authority to force 28 you all.”).

23 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 28 of 42

1 reconciliation as evidence that he now favors violence, despite the evidence that they themselves 2 intercepted showing just the opposite.98 3 The undercover agent also misrepresented his own repeated consumption of alcohol 4 during his meetings with the alleged “conspirators.” His affidavit states that he consumed 5 alcohol at the March 5, 2007 meeting with Jack and Lo Cha Thao, suggesting that this was a 6 noteworthy and isolated event.99 But he does not disclose that he also consumed alcohol (both 7 beer and hard liquor) on at least the meetings on April 12, April 24, May 3, May 11, and May 8 23.100

9 F. The prosecutors repeat the agents’ misstatements. 10 These misrepresentations have not been limited to the agents’ affidavits. The prosecuting 11 attorneys have repeated many of the same misstatements, despite holding clear and irrefutable 12 evidence that contradicted them. 13 At the bail hearing, for example, the prosecutors emphasized the gravity of the charges 14 and the seriousness of the defendants’ actions (“This is not corporate mergers and acquisitions. 15 We’re talking about a commissioned officer of the United States Army trying to get a defense 16 contractor to engage in huge felonies, selling arms out the back door as a side venture.”)101 To 17 bolster their argument, the prosecutors repeated to the Court the false allegation that this case 18 began when Harrison Jack approached a “defense contractor,” and even inflated the allegation 19 further by stating that the “contractor” had business in Iraq (“It’s also important to recognize 20

98 21 Phillips Dec., Exh. 67, LCT Wiretap Affidavit [TarnEgl 034938] at 8:23:9:3; Phillips Dec., Exh. 72, Crowder Affidavit in Support of Search Warrant Application #1 [TarnEgl 002019-20] 22 (“SW App #1”), at 5:21-6:1; Phillips Dec., Exh. 73, Crowder Affidavit in Support of Search Warrant Application #2 [TarnEgl 001760-61] (“SW App #2”), at 6:27-7:7; Phillips Dec., Exh. 23 74, Crowder Affidavit in Support of Search Warrant Application #3 [TarnEgl 001638-39] (“SW App #3”), at 6:27-7:7; Phillips Dec., Exh. 66, HJ Wiretap Affidavit [TarnEgl 035389] at ¶ 24; 24 Phillips Dec., Exh. 13, HJ Cont. Wiretap Affidavit [TarnEgl 034795] at 10:18-26. 99 Phillips Dec., Exh. 1, Agent’s Affidavit at 13:10-12. 25 100 Phillips Dec., Exh. 75, 4/12/07 meeting at 3:1-13; Phillips Dec., Exh. 76, 4/24/07 meeting at 26 3:18-4:2, 5:25-6:21; Phillips Dec., Exh. 18, 5/3/07 meeting at 1:17-2:8, 4:19-20; Phillips Dec., Exh. 42, 5/11/07 meeting at 4:2-11, 57:9-12; Phillips Dec., Exh. 32, 5/23/07 meeting at 1:19-2:2. 27 101 Phillips Dec., Exh. 39, Bail Hearing at 60:12-16. See also id. at 76:4-17; Phillips Dec., Exh. 77, Government’s Press Release re Operation Tarnished Eagle, 6/4/07; Phillips Dec., Exh. 78, 28 Criminal Complaint at ¶¶ 17-34.

24 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 29 of 42

1 how the case started, with Harrison Jack approaching a government contractor, not a fake one, a 2 real one who has government contracts in Iraq, who has business in Iraq and other 3 places.”)102 The prosecutors also claimed, wrongly, that in Jack’s call with the “defense 4 contractor,” Jack “outline[d] exactly the plan to buy the arms and logistics . . . .”103 But 5 according to the government’s interview report, Jack did no such thing; he only asked about 6 getting 500 AK-47s that Hmong victims of Genocide could use to protect themselves.104 7 Likewise, the prosecutors described Jack as a savvy and experienced military

8 professional (“This is a professional defense professional dealing with the defense 9 professionals. . . . Harrison Jack probably knows better than the undercover agent exactly how 10 this operates, because he was a Lieutenant Colonel in the United States Army, a Ranger,

11 Airborne Infantry Officer, did tours in Southeast Asia. He’s not someone who just fell off the 12 turnip truck.”)105 But as the government knew, Jack may have been knowledgeable about 13 supernatural healing and divination, but he was useless when it came to any real-world 14 organization or planning. 15 The prosecutors also made misleading statements about the defendants’ ability to finance 16 the plan.106 Discovery that the government provided after the bail hearing shows that, despite an 17 alleged total budget of $9.8 million, the defendants had raised just $24,000—less than one 18 quarter of the amount of that the government alleges was to be made to the agent as a first 19 payment.107 However, the prosecutors told the Court that the defendants had enough money to

20 102 Phillips Dec., Exh. 39, Bail Hearing at 43:3-9. 21 103 See id. at 43:16-22 (“Mr. Harrison Jack approached a legitimate government contractor and 22 asked to buy 500 AK-47s. . . . We have a taped conversation between Mr. Harrison Jack and that defense contractor of November of 2006 in which they outline exactly the plan to buy the arms 23 and logistics about buying the arms from that defense contractor.”). 104 Phillips Dec., Exh. 2, Hawthorne Report at 1 [TarnEgl 034614]. 24 105 Phillips Dec., Exh. 39, Bail Hearing at 44:3-23. 25 106 Phillips Dec., Exh. 39, Bail Hearing at 64:10-17. 107 26 See supra, at 13. The defendants’ arguments at the bail hearing were based on a review of the discovery provided by the government less than 10 days before the hearing. This discovery 27 included tapes of the meetings between some of the defendants and the undercover agent. As discussed above, the tapes contradicted statements made by the undercover agent in his affidavit 28 in support of probable cause. The day before the hearing, the government produced transcripts of calls between Jack and the undercover agent. The vast majority of the discovery produced to 25 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 30 of 42

1 purchase the weapons from the undercover agent (“Did these individuals have enough American 2 currency to purchase the 125 AK-47s and smoke grenades on the 4th of June? Yes. Did they 3 have enough American currency to buy a second load of AK-47s and smoke grenades in their 4 possession on the 4th of June? Yes. Did they have enough money to buy the first installment and 5 a Stinger missile? Yes.”)108 6 As already noted, the prosecutors mischaracterized the critical June 2 meeting, alleging 7 that General Vang Pao endorsed the “coup plan” at the meeting, even while the government held 8 extensive evidence demonstrating that, in fact, the General assailed the plan and forbade others 9 to participate. And this pattern of misrepresentations continued in the discovery motions heard 10 in December 2008. In its Opposition to the defendants’ Motion to Compel Discovery, the 11 government told the Court that Michael Spak, a retired CIA officer, had described to the 12 government a meeting with General Vang Pao in which the General expressed support for 13 violence in Laos (“Vang Pao and his associates outlined for hours their operational concept for 14 military operations in Laos against the Lao government and Lao soldiers”).109 The government 15 also stated that Spak discussed the General’s plan with the CIA, that “the CIA would not assist or 16 approve of the plan,”110 and that the General knew this.111 17 After news organizations brought the government’s account of this meeting to Spak’s 18 attention, the retired CIA officer felt compelled to correct the record. He submitted his own 19 declaration explaining that, contrary to the government’s allegations, “General Vang Pao 20 outlined his political plan and never mentioned military operations against the Lao government 21 or Lao soldiers.”112 To the contrary, General Vang Pao

22 date, however, was produced after the hearing, including all the wiretap recordings, all of the 23 post-arrest statements of the defendants, other witness statements, and the FBI 302 reports and ATF reports of investigation. As a result, the defendants did not have access at the bail hearing 24 to evidence that contradicted many of the statements made by the government . 108 25 Phillips Dec., Exh. 39, Bail Hearing at 64:6-17. 109 Phillips Dec., Exh. 79, Government’s Opposition to Motion to Compel Discovery, filed 26 10/31/08 (Doc. 344) at 26:14-18. 110 27 Id. at 26:23-27:2. 111 Id. 28 112 Phillips Dec., Exh. 80, Declaration of Michael Spak in Support of Defendants’ Reply in 26 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 31 of 42

1 planned to work within the existing political system. . . . General Vang Pao was not interested in a military solution and kept repeating his preference for a 2 political solution. General Vang Pao said he was developing political influence with the U. S. State Department and the U.S. Congress and firmly believed the 3 political route would be successful. General Vang Pao stated that he had come out publicly for peace with the Lao government. . . . In rejecting my advocacy for 4 a military component [with U.S. government approval], General Vang Pao said that he was an old man, that he had fought wars for many years, and that he 5 did not have the energy or resources to get involved in another war. General Vang Pao also made it clear that he lacked the financial resources for any military 6 component.”113 7 Three defense attorneys were present when the government interviewed Spak, and can confirm 8 that this is what he related. Once again, the government fundamentally mischaracterized the 9 evidence.

10 III. ARGUMENT 11 A. Legal Standard: Outrageous government conduct violates the Due Process Clause and requires dismissal of an indictment. 12 The Supreme Court first recognized that outrageous government conduct may warrant 13 dismissal of an indictment in United States v. Russell, 411 U.S. 423 (1973).114 In Russell, the 14 Court stated that there might be situations “in which the conduct of law enforcement officials is 15 so outrageous that due process principles would absolutely bar the Government from invoking 16 judicial process to obtain a conviction.”115 Dismissal of an indictment for outrageous 17 government conduct may also be predicated on a court’s inherent supervisory powers.116 Courts 18 19 Support of Motion to Compel Discovery at ¶ 21, filed 12/04/08 (Doc. 350) (emphasis added). 20 113 Id. at ¶¶ 9, 11. 114 21 See United States v. Batres-Santolino, 521 F.Supp. 744, 750 n.3 (N.D.Ca. 1981) (“Although referred to as a defense in most of the cases cited herein, outrageous government conduct is 22 generally considered to be a due process deprivation and, therefore, more properly described as a grounds for dismissal.”); United States v. Mayer, 490 F.3d 1129, 1141 (9th Cir. 2007) (dismissal 23 of an indictment may be appropriate when the government has engaged in outrageous misconduct.). 24 115 Russell, 411 U.S. at 431-32. Prior to Russell, the Ninth Circuit had adopted a form of the defense in Greene v. United States, 454 F.2d 783 (9th Cir. 1971). See Batres-Santolino, 521 25 F.Supp. at 750. 116 26 See United States v. Luttrell, 889 F.2d 806, 811 (9th Cir. 1989) (“The dismissal of an indictment because of outrageous government conduct may be predicated on alternative grounds: 27 a violation of due process or the court’s supervisory powers.”). The basis for dismissal affects the standard of review on appeal. Courts of Appeal review de novo a denial of a motion to 28 dismiss an indictment on due process grounds. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986), cert. denied, 479 U.S. 869 (1986). A denial based on a refusal to exercise the 27 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 32 of 42

1 recognize that a claim of outrageous government conduct differs from the defense of entrapment. 2 “The issue of entrapment focuses on the intent or predisposition of the defendant to commit the 3 crime. The concept of outrageous government conduct focuses on the Government’s actions. An 4 indictment may be set aside because of outrageous government conduct whether or not the 5 defendant was predisposed to engage in criminal activity.”117 6 Courts dismiss cases when “the nature and extent of police involvement in th[e] crime 7 [is] so overreaching as to bar prosecution of the defendants as a matter of due process of law.”118 8 Four factors determine whether the government’s conduct is sufficiently outrageous to warrant 9 dismissal:119 10 1. Whether the defendants were active participants in the crime before the government involvement began. 11 2. Whether the defendants would have been able to commit the crime without the 12 government involvement. 13 3. Whether the government entered an ongoing criminal enterprise or the criminal enterprise was spurred on by the government’s actions. 14 4. Whether the misconduct was performed by a government agent or a private 15 informer. 16 17 18 court’s supervisory power is reviewed for abuse of discretion. United States v. Simpson, 813 19 F.2d at 1465 n.2, cert. denied, 484 U.S. 898 (1987). Factual findings upon which the decision was based are reviewed for clear error. United States v. Emmert, 829 F.2d 805, 811 (9th Cir. 20 1987). 117 United States v. Gonzales, 539 F.2d 1238, 1239-40 (9th Cir. 1976); see also United States v. 21 Garza-Juarez, 992 F.2d 896, 903 (9th Cir. 1993) (“Outrageous government conduct refers to behavior of investigators. This conduct is considered without reference to any predisposition on 22 the defendant’s part.”). 118 23 United States v. Twigg, 588 F.2d 373, 377 (3d Cir. 1978). 119 See Twigg, 588 F.2d at 377; Batres-Santolino, 521 F.Supp. at 751-53. Some courts apply an 24 analogous five-factor test to determine whether the government’s involvement in a criminal 25 enterprise was permissible: (1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the 26 government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out 27 criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity. See United States v. Bonanno, 28 852 F.2d 434, 437 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989).

28 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 33 of 42

1 B. All four factors weigh in favor of dismissing the indictment in this case. 2 1. The defendants were not active participants in the “crime” before the government got involved. 3 As the Northern District of California noted when granting a motion to dismiss for 4 government misconduct, “[j]ust as a defendant’s lack of prior criminal involvement is relevant to 5 an entrapment defense, so too is it relevant to a claim of outrageous government conduct. In 6 neither case is it dispositive, but it is highly relevant to the issue of whether the defendant or the 7 government should ultimately be held accountable for the instigation of the crime.”120 8 Here, there is no evidence of prior criminal involvement The only alleged activity that 9 occurred before the government began orchestrating the so-called conspiracy was a single 10 telephone call from Harrison Jack, a person who put his faith in supernatural forces, to Namon 11 Hawthorne, a person who purports to harness those forces. And the alleged purpose of this call 12 was not to launch any coup attempt, but—at most—to enable Hmong victims of genocide “to 13 protect themselves.”121 These allegations fail to establish any prior criminal involvement by 14 defendant Jack, let alone by the remaining defendants. 15 2. The alleged criminal enterprise was not ongoing at the time the government 16 got involved. 17 “Almost all of the cases rejecting an outrageous government conduct defense involve 18 defendants who have previously been involved in similar crimes, and/or a criminal enterprise 19 that was already in progress at the time government agents became involved.”122 In this case, 20 there was no enterprise in progress whatsoever. When the undercover agent contacted Jack over

21 120 Batres-Santolino, 521 F.Supp. at 751 (internal citations and quotations omitted). As the court 22 in Batres-Santolino noted, while the lack of prior criminal involvement can demonstrate that the government instigated the crime, the existence of prior criminal involvement does not negate the 23 government’s egregious conduct. For example, in Greene v. United States, 454 F.2d 783 (9th Cir. 1971), the convictions were reversed on outrageous-government-conduct grounds even 24 though the defendants had previously been convicted of precisely the same crime. 121 25 Phillips Dec., Exh. 2, Hawthorne Report at 1 [TarnEgl 034614]. 122 Batres-Santolino, 521 F.Supp. at 751 n. 6 (citing United States v. Russell, 411 U.S. 423 26 (1973)); United States v. Wylie, 625 F.2d 1371, 1374 (9th Cir. 1980), cert. denied, 449 U.S. 1080 (1981); United States v. Prairie, 572 F.2d 1316 (9th Cir. 1978); United States v. Reynoso-Ulloa, 27 548 F.2d 1329, 1332, 1338-39 (9th Cir. 1977), cert. denied, 436 U.S. 926 (1978); United States v. Gonzales, 539 F.2d 1238 (9th Cir. 1976); United States v. Greenbank, 491 F.2d 184 (9th Cir. 28 1974).

29 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 34 of 42

1 four months after Jack’s alleged call to Hawthorne, Jack had forgotten about the entire affair,

2 stating “Oh. Oh. Okay. Okay. Golly sakes, that’s a long time ago.”123 There was no 3 “enterprise” of any kind until the agent breathed life into it. And even then, Jack insisted that the 4 only goal was to save lives, not to overthrow the government, and that preferably no force would 5 be used at all.124 6 The lack of any ongoing criminal enterprise in this case stands in stark contrast with 7 cases where courts have found that the government’s involvement was appropriately limited. 8 For example, in United States v. McQuin, 612 F.2d 1193 (9th Cir. 1980), cert. denied, 445 U.S. 9 955 (1980), the court denied McQuin’s motion to dismiss for government misconduct because 10 McQuin had already conceived a detailed, well-developed, professional-sounding plan for the 11 crime before the agents ever met him.125 Jack’s one phone call to Hawthorne—a man who Jack 12 believed made miraculous healing water—followed by four months of total inactivity, is not 13 even comparable. 14 Moreover, in this case, an extensive body of evidence demonstrates not only inactivity 15 but staunch opposition to the “crime” by General Vang Pao and others—evidence that the 16 government ignored.

17 3. The defendants would have been unable to commit the “crime” without the government’s involvement. 18 Courts have upheld a charge of outrageous government conduct in circumstances where 19 the defendants lacked the capacity to commit the crimes with which they were charged without 20 the government’s assistance.126 That is certainly true here. The agent provided all the expertise, 21 organization, and direction, while some defendants contributed, at most, delusional wishes, and 22 others did not even do that. Harrison Jack’s initial contact was with water-salesman Namon 23 Hawthorne, and he allegedly tried to advance the scheme by turning to muscle mapping and 24

25 123 Phillips Dec., Exh. 2, Hawthorne Report at 2-3 [TarnEgl 034615-16]. 124 See supra, pp. 4, 6. 26 125 Batres-Santolino, 521 F.Supp. at 751 (noting that McQuin could not claim that the idea and 27 expertise for the crime came from government participation). 126 See, e.g., United States v. Lomas, 706 F.2d 886, 891 (9th Cir. 1983) (citing Twigg, 588 F.2d at 28 380-81); Greene, 454 F.2d at 786-87.

30 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 35 of 42

1 crystal kinesiology—just as he believed he could cure diabetes and radiation poisoning. And Lo 2 Cha Thao was no more capable. He lacked the most basic knowledge needed to formulate a 3 realistic plan—such as that there is security at border crossings and the airport, or that the 4 population of Laos’s capital Vientiane is not twenty or thirty thousand, but 25 times that 5 number.127 Nor did he have any understanding of military operations. Indeed, the agent even 6 had to supply proper maps of Laos after the “conspirators” proved incapable of procuring any.128 7 The defendants’ alleged fundraising operation—which consisted of a booth at a rally, a 8 collection jar, and thank you notes—allegedly raised only $24,000 out of a budget of $9.8 9 million. In the absence of government support, and considering their only source for weapons 10 other than the government agent was water-salesman Hawthorne, it is inconceivable that the 11 defendants could have formulated and carried out any part of the alleged plot on their own. 12 Indeed, to the extent the “plan” sounded ominous at all, the undercover agent was 13 responsible. Not only did the agent offer to supply the indispensible ingredient of the weapons, 14 but he suggested the weapons they should use, set the timeline for the operation, and told the 15 defendants to set up planning meetings. When the defendants encountered problems, the agent 16 provided solutions. When Lo Cha Thao told him that their main problem was getting the 17 weapons into Laos, the agent said, “it is not a problem me getting it there.”129 In reality, of 18 course, even if the defendants could have procured weapons with no money and no actual 19 supplier, they had no possible means to deliver weapons to Laos. 20 But the agent in this case provided more than planning and logistical support. He coaxed 21 and prodded the so-called conspirators, stoking their outrage at the Lao government’s horrific 22 acts of genocide, even as he encouraged them to believe that the U.S. government would support 23 an effort to overthrow the repressive Lao government with a democracy.130 In short, the agent 24 “set [the defendants] up, encouraged [the defendants], provided the essential supplies and 25

127 26 Supra, p. 12. 128 Phillips Dec., Exh. 17, 3/5/07 meeting at 64:22-67:2. 27 129 Phillips Dec., Exh. 81, 4/18/07 meeting at 18:20-21:2. 28 130 See supra, pp. 7, 8.

31 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 36 of 42

1 technical expertise, and when [the defendants and the agent] encountered difficulties in 2 consummating the crime, [the agent] assisted in finding solutions.”131

3 4. The misconduct was performed by a government agent, not a private informer. 4 Courts have found that excessive involvement by the government is more culpable 5 where—as here—the conduct is performed not by a private informer, but by a government agent 6 who ought to know better. “Passive tolerance . . . of a private informant’s questionable conduct 7 [is] less egregious than the conscious direction of government agents typically present in 8 outrageous conduct challenges.”132 Here, the actions were performed by a government agent, 9 with an Assistant U.S. Attorney supervising the investigation. 10 C. This case is similar to others that Courts have dismissed for government 11 misconduct. 12 In Batres-Santolino, the Northern District of California granted a motion to dismiss for 13 government misconduct based on similar facts to this case. In both cases, the informant/agent 14 gave the impression of being connected to the government.133 Also, while prices and quantities 15 of the illegal items were discussed in both cases, no final arrangements for a sale were made, at 16 least in part because defendants did not have the money and were not sure whether or how they 17 could get it.134 In addition, in both cases the informant/agent pressed the defendants to complete 18 the sale,135 and escalated the plan.136 Likewise, in both cases the defendants’ actions were 19 131 Twigg, 588 F.2d at 381. 20 132 United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991), quoting, Simpson I, 813 F.2d at 1468. 21 133 Batres-Santolino, 521 F.Supp. at 748-749 (“Thomas told Batres and Haydon that he had 22 friends in the DEA, whom he pointed out in his bar, and gave the impression of being a prominent, well-known figure in Quito.” Also, “Thomas represented himself to defendants as 23 highly knowledgeable and well-connected with respect to the Ecuadorian government. He had contacts in the presidency, the ministry of defense, and the ministry of agriculture. From the 24 latter, he could obtain secret details about competitive bids.”). The undercover agent in this case likewise led the “conspirators” to believe that he was connected to the government. See supra, 25 section II. B. 134 Id. at 750 (“Defendants’ first meeting with Lopez concluded with no definite terms 26 established for price or quantity, and no definite agreement about the deal. No cocaine samples were ever exchanged.”). As explained supra, at p. 13, the defendants here had allegedly raised 27 $24,000 out of $9.8 million. 28 135 Id. at 749 (“In a late January call, not made in Agent Lopez’ presence, Thomas stated to

32 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 37 of 42

1 “ludicrous,” and the defendants were not “the experienced dealers [they] purported to be.”137 2 In dismissing the Batres-Santolino case, the court reasoned that “[d]efendants here had 3 never imported cocaine before, and had no foreign source of supply of their own whatsoever. As 4 obvious novices, it is inconceivable that they could have entered the secretive world of 5 international drug smuggling on their own. Established drug exporters would have spotted them 6 instantly as amateurs and dismissed their efforts as ludicrous.”138 The exact same reasoning 7 applies here. The “government agent[] ‘manufactured’ a crime that . . . could not and would not 8 have been committed if [the agent] had not finagled defendants into it and offered to provide 9 them with an otherwise unavailable source of supply of the illegal [item].”139 Like in Batres- 10 Santolino, “this is not a case where the government is ferreting out ongoing criminal activity. It 11 is a case where the government, through its agent, went about putting persons into the business 12 of crime for the first time.”140 13 The facts of this case are also similar to those in United States v. Twigg, 588 F.2d 373 (3rd 14 Cir. 1978) at 436. In Twigg, the court dismissed the case for outrageous government conduct 15 because the defendants had not begun implementing the scheme before the DEA got involved; 16 the government, through an informer, was in charge of the operation; the government supplied an 17 indispensable ingredient, and it was unclear whether the defendants had the means or the money 18 to obtain the chemical on their own.141 When the defendants could not locate an adequate site,

19 Connie that the ‘big man’ was holding him responsible for the delay. Thomas’ intent in making 20 this statement was to encourage defendants to set a definite date in the near future for their return to Quito to make arrangements for a cocaine sale.”). See supra, at pp. 34, 35 for information on 21 the agent’s tactics in pressing the defendants to complete the sale soon. 136 22 Id. at 749 (“Defendant Lancaster told Thomas that he had dealt cocaine on a small scale before, but that he had never handled large quantities and had never imported it. Thomas 23 cautioned defendants that the ‘big man’ was not easily impressed and was not accustomed to dealing with amateurs or small-scale dealers, and was only willing to meet with them because of 24 their connection with Thomas. He encouraged them to represent themselves to Lopez as experienced, large scale dealers.”) 25 137 Id. at 749. 138 26 Id. at 751. 139 Id. at 751. 27 140 Id. at 752. 28 141 Twigg, 588 F.2d at 380-81.

33 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 38 of 42

1 the government provided a solution by finding them one. Furthermore, the defendants did not 2 have the know-how with which to actually commit the crime, and the informer provided all of 3 the expertise.142 4 There is even less evidence of predisposition to the crime here than there was in Twigg. 5 In Twigg, the court found that the only evidence that one of the defendants was predisposed to 6 commit the crime was his receptivity to the informant’s proposal and testimony of the informer 7 that he had committed the same crime with the defendant before. However, when the informer 8 reestablished contact with the defendant, the latter was not engaged in any illicit activity.143 9 Likewise, when the agent in this case contacted Jack, he was not engaged in any illicit activity. 10 Unlike in Twigg, however, Jack had not committed the same crime before. In addition, the 11 government has no evidence that any of the other defendants had committed this crime before, or 12 were engaged in any criminal enterprise before the agent took over. 13 Similarly, in Green v. United States, 454 F.2d 783 (9th Cir. 1981), the Ninth Circuit 14 reversed the defendants’ convictions and dismissed a case for outrageous government conduct 15 where, among other things, the events “reveal[ed] almost unbelievable naivete on the part of 16 defendants in accepting [the undercover agent] as a representative of the “syndicate.”144 In 17 Greene, as here, the defendants indicated they were having difficulty and the agent responded by 18 pressuring them to move forward quickly.145 The agent in Greene accomplished this by telling 19 the defendants, “the boss is on my back.”146 Here, the agent pressured the defendants by telling 20 them, “my partner was not happy with the size of the first order,”147 that their timeline was too 21 far out,148 and that the plan needed to happen by the beginning of June because the agent was

22 142 Id. 23 143 Twigg, 588 F.2d at 381. 24 144 Greene, 454 F.2d at 784. 145 25 Id. at 785 (“[The defendants] indicated that they were having difficulty getting into operation. At this time [the agent], in an effort to spur production of bootleg whiskey, told [the defendants], 26 ‘the boss is on my back.’”). 146 Id. 27 147 Phillips Dec., Exh. 1, Agent’s Affidavit at 32:20-22. 28 148 Phillips Dec., Exh. 15, 1/25/07 meeting at 33:6-13.

34 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 39 of 42

1 leaving for Iraq.149 Also, while in Greene the defendants took much longer to make a delivery 2 than they planned,150 the defendants here were never able to make a weapons purchase. Finally, 3 in both cases, the defendants “talked in grandiose terms of criminal activity to impress the 4 [agent].”151 5 The factors that the Greene court cited in reversing the defendants’ convictions apply 6 equally here. The agent in Greene reinitiated contact with the defendants at a time when they 7 were not engaged in criminal activity,152 just as the agent here initiated contact with Jack after he 8 had forgotten about the alleged call to Namon Hawthorne, and was doing nothing illegal. In both 9 cases, the agent’s involvement in the criminal activities was not only extended in duration, but 10 substantial. Also, in both cases, the agent treated the defendants as partners, provided 11 equipment, supplies and a site (in the Greene case) or transportation of the materials (in the 12 instant case).153 In both cases the agent prodded and pressured the defendants to commit the 13 crime.154 The agents in both cases were principal actors—they “did not simply attach 14 [themselves] to an on-going operation for the purpose of closing it down and prosecuting the 15 operators.”155 16 The Greene court concluded, as this court should likewise conclude: “[w]e do not 17 believe the Government may involve itself so directly and continuously over such a long period 18 of time in the creation and maintenance of criminal operations, and yet prosecute its 19 collaborators. . . . When the Government permits itself to become enmeshed in criminal activity, 20 from beginning to end, to the extent which appears here, the same underlying objections which 21

22 149 Phillips Dec., Exh. 18, 5/3/07 meeting at 28:12-29:14. 23 150 Greene, 454 F.2d at 785 (“some eight months after they had said they would be in production 24 in ninety days, [the defendants] made their first delivery of bootleg alcohol to [the agent].”). 151 Id. at 786. 25 152 Id. 26 153 Id. at 786 n.5. The Greene court noted that had the agent been acting in a private capacity, the facts would label him an aider and abettor, and a co-conspirator with the defendants. 27 154 Id. at 787. 28 155 Id.

35 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 40 of 42

1 render entrapment repugnant to American criminal justice are operative.”156 2 Because all the factors for dismissal based on outrageous government conduct are present 3 in this case, and because the facts here mirror or exceed the facts relied upon by the Greene, 4 Twigg, and Batres-Santolino courts, this Court should dismiss the indictment for outrageous 5 government conduct

6 IV. CONCLUSION 7 The government’s press release about this case said that “[t]his investigation read like a 8 movie script[.]”157 In fact, the government’s case is a piece of fiction—one that the government 9 itself concocted. The government’s conduct has been so egregious—and its misrepresentations 10 so numerous—that the Court should end this case now, and dismiss the indictment. 11 Respectfully submitted, 12 Dated: March 9, 2009 KEKER & VAN NEST, LLP 13 14 15 By: /s/ John W. Keker JOHN W. KEKER 16 DAVID J. SILBERT GALIA A. PHILLIPS 17 Attorneys for Defendant GENERAL VANG PAO 18 Dated: March 9, 2009 LAW OFFICE OF JOHN BALAZS 19 20

21 By: /s/ John Balazs JOHN BALAZS 22 Attorneys for Defendant GENERAL VANG PAO 23 24 25 26 27 156 Id. 28 157 Phillips Dec., Exh. 77, Government’s Press Release re Operation Tarnished Eagle, 6/4/07.

36 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 41 of 42

1 Dated: March 9, 2009 OFFICE OF THE FEDERAL DEFENDER 2 3 By: /s/ Daniel J. Broderick 4 DANIEL J. BRODERICK Attorneys for Defendant 5 HARRISON JACK

6 Dated: March 9, 2009 7 8 By: /s/ Mark J. Reichel 9 MARK J. REICHEL Attorneys for Defendant 10 LO CHA THAO

11 Dated: March 9, 2009 12 13 By: /s/ William J. Portanova 14 WILLIAM J. PORTANOVA Attorneys for Defendant 15 LO THAO

16 Dated: March 9, 2009 MORRISON & FOERSTER LLP 17 18 By: /s/ James J. Brosnahan 19 JAMES J. BROSNAHAN 20 GEORGE C. HARRIS SOMNATH RAJ CHATTERJEE 21 MELISSA ANN JONES Attorneys for Defendant 22 YOUA TRUE VANG

23 Dated: March 9, 2009 24 25 By: /s/ Krista Hart 26 KRISTA HART Attorneys for Defendant 27 HUE VANG

28

37 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD Case 2:07-cr-00266-FCD Document 379 Filed 03/09/2009 Page 42 of 42

1 Dated: March 9, 2009 LAW OFFICES OF DINA LEE SANTOS 2 3 By: /s/ Dina Lee Santos 4 DINA LEE SANTOS Attorneys for Defendant 5 CHONG YANG THAO

6 Dated: March 9, 2009 LAW OFFICE OF MICHAEL B. BIGELOW 7 8

9 By: /s/ Michael B. Bigelow MICHAEL B. BIGELOW 10 Attorneys for Defendant SENG VUE 11 Dated: March 9, 2009 LAW OFFICE OF SHARI RUSK 12 13

14 By: /s/ Shari Rusk SHARI RUSK 15 Attorneys for Defendant CHUE LO 16 Dated: March 9, 2009 LAW OFFICE OF DANNY D. BRACE, 17 JR. 18 19 By: /s/ Danny D. Brace, Jr. 20 DANNY D. BRACE, JR. 21 Attorneys for Defendant NHIA KAO VANG 22 Dated: March 9, 2009 LAW OFFICE OF HAYES H. GABLE, III 23 24 25 By: /s/ Hayes H. Gable, III HAYES H. GABLE, III 26 Attorneys for Defendant DANG VANG 27 28

38 437536.01 DEFENDANTS’ MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT CONDUCT Case No. 2:07-CR-0266 FCD